When a Child Is Injured in a Car Accident

December 21, 2015
By
Matthew Clawson

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Car seats, and youth booster seats, have prevented many serious injuries
to children in car accidents. Sometimes, however, the crash is so severe
that the child may still be injured in a car seat. When a child is injured
by the negligence of another, special rules govern those claims and lawsuits.

What to Do After Your Child Is Hurt in a Car Accident

The first question often on the minds of most parents is: how will I know
for sure what injuries my child received? The second question quickly
follows: when will I know when my child has recovered from his injuries?
Pediatricians tell us that children experience physical and emotional
injuries differently than do adults. After the child is cleared in the
ER to be released home, the child’s regular pediatrician should
be consulted as soon as possible after that to examine the child with
the history of the child that only his regular pediatrician has. Taking
the child to the pediatrician is the most helpful way to start the injury
claims process. This examination will provide an informed ‘base-line’
of the child’s accident injuries as compared to his pre-accident
condition, as well as recording the parents’ account as to how the
child is acting or responding at home. Regular follow up visits will document
the child’s progress for the injury claim and, possibly, provide
the signs to involve a specialist in pediatric neurology or orthopedics
in the child’s recovery.

Children's Injuries May Take Time to Present

Insurance companies handling children’s injury claims seem to want
to rush to settle those claims, even when the doctor is not completely
sure the child has recovered—or has progressed in growth sufficient
to determine if the injury is resolved or will be an ongoing problem for
the child. Parents must resist the pressure of the insurance company to
settle their child’s claim. The law gives the child lots of room
to recover and resolve the insurance claim: in Colorado the deadline to
file a lawsuit for a claim for negligent injury to a child is the child’s 20th birthday!

Elements of a Child's Personal Injury Claim

There are really
two claims for compensation when a child is injured. First, the child has
a claim for his own damages including: “non-economic” damages,
such as pain, emotional stress and the like; “economic” damages
the child will have in the future, such as a reduced ability to earn a
living; and “physical impairment” or “disfigurement”
damages. As noted above, this claim belongs to the child alone and does
not expire until the child’s 20th birthday.

The second claim is that of the parents for reasonable and necessary expenses,
such as medical expenses, paid by the parents on behalf of the child between
the date of the child’s injury and the child’s 18th birthday. This claim belongs to the parent(s) and, in the case of a car
accident injury, this claim must be settled or filed as a lawsuit by the
parents within 3 years of the date of the accident or it will be forever barred.

Sometimes it makes more sense for the parents and child to join their claims
and file a lawsuit before the 3rd anniversary of the car accident. In that case, the child’s claim
is brought by the parent as “next friend,” i.e. the adult
who has the legal right to control the affairs of the child as parent
or guardian. Courts do not require a probate conservatorship be set up
in order for a parent to initially file a child’s claim for injuries in court.

How the Child's Settlement Is Handled

When the insurance claim is paid for a child’s injury, a judge must
approve the payment to be sure that the claim is paid in an appropriate
amount in relation to the injuries sustained by the child and that it
is in the overall best interest of the child to settle the claim for the
tendered amount at that time. At all times in the claim’s process
the parents must be reminded that the child’s settlement belongs
to him—it does not belong to the parents. The judge will enter orders
requiring the parents to keep the child’s money in a safe and insured
bank account until the child reaches an age where it can reasonably be
paid to him. The court will likely require that a parent be formally appointed
a conservator by the probate court and be required to report each year
to the probate court as to the status of the child’s funds. If a
parent does not keep the child’s money separate and safe for the
child to reach adulthood, the courts will assess severe penalties on the
parent(s).

In light of the complexities of handling a child’s injury claim,
most parents seek legal advice and guidance through the process. Personal
injury attorneys at Clawson & Clawson LLP have the experience to handle
a child’s auto injury claim to ensure that the child’s injuries
are fairly evaluated and fairly compensated by the insurance company—as
well as the experience of guiding the parents through the probate process
that safeguards the child’s settlement funds until he is able to
handle those funds on his own.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.